Navajo Nation v. Dept. of the Interior ( 2017 )


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  •                    FOR PUBLICATION
    
       UNITED STATES COURT OF APPEALS
            FOR THE NINTH CIRCUIT
    
     NAVAJO NATION,                                No. 14-16864
                        Plaintiff-Appellant,
                                                     D.C. No.
                        v.                        3:03-cv-00507-
                                                       GMS
     DEPARTMENT OF THE INTERIOR;
     RYAN ZINKE*, Secretary of the
     Interior; UNITED STATES BUREAU OF               OPINION
     RECLAMATION; BUREAU OF INDIAN
     AFFAIRS,
                    Defendants-Appellees,
    
     STATE OF ARIZONA; CENTRAL
     ARIZONA WATER CONSERVATION
     DISTRICT; ARIZONA POWER
     AUTHORITY; SALT RIVER PROJECT
     AGRICULTURAL IMPROVEMENT AND
     POWER DISTRICT; SALT RIVER
     VALLEY WATER USERS’
     ASSOCIATION; IMPERIAL IRRIGATION
     DISTRICT; METROPOLITAN WATER
     DISTRICT OF SOUTHERN
     CALIFORNIA; COACHELLA VALLEY
     WATER DISTRICT; STATE OF
     NEVADA; COLORADO RIVER
     COMMISSION OF NEVADA;
    
    
    
         *
           We substitute Ryan Zinke for predecessor Sally Jewell as a
    Defendant-Appellee pursuant to Fed. R. App. P. 43(c)(2).
    2           NAVAJO NATION V. DEP’T OF INTERIOR
    
     SOUTHERN NEVADA WATER
     AUTHORITY; STATE OF COLORADO,
       Intervenor-Defendants-Appellees.
    
    
             Appeal from the United States District Court
                      for the District of Arizona
              G. Murray Snow, District Judge, Presiding
    
               Argued and Submitted February 14, 2017
                      San Francisco, California
    
                         Filed December 4, 2017
    
        Before: Ronald M. Gould and Marsha S. Berzon, Circuit
             Judges, and Marvin J. Garbis,** District Judge.
    
                        Opinion by Judge Berzon
    
    
    
    
        **
           The Honorable Marvin J. Garbis, United States District Judge for
    the District of Maryland, sitting by designation.
                 NAVAJO NATION V. DEP’T OF INTERIOR                           3
    
                                SUMMARY***
    
    
          Standing / Sovereign Immunity / Water Rights
    
        The panel affirmed in part, and reversed in part, the
    district court’s dismissal of the Navajo Nation’s Second
    Amended Complaint, and denial of the Nation’s Fed. R. Civ.
    P. 60(b) motion for relief, in their challenge to the
    Department of the Interior’s published Guidelines in 2001
    and 2008 clarifying how it would make “surplus” and
    “shortage” determinations for delivery to Western states of
    the waters of the Colorado River.
    
        The Nation is a federally recognized tribe, and the United
    States is trustee of the Nation’s tribal lands. The Navajo
    Reservation covers parts of Arizona, New Mexico, and Utah,
    and lies almost entirely within the drainage basin of the
    Colorado River.
    
        The Department of the Interior, through the Bureau of
    Reclamation, operates dams and reservoirs that control the
    flow of the Colorado’s waters.
    
        The panel affirmed the district court’s dismissal of the
    Nation’s National Environmental Policy Act claims for lack
    of Article III standing. The panel held that, although the
    district court considered the Nation’s interests in adequate
    water too narrowly, it agreed with the district court that the
    Nation failed to show it “reasonably probable” that the new
    
    
        ***
            This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    4          NAVAJO NATION V. DEP’T OF INTERIOR
    
    Guidelines threatened either the Nation’s unadjudicated water
    rights or its practical water needs.
    
        The panel held that the Nation’s breach of trust claim was
    not barred by sovereign immunity, and remanded to the
    district court to consider the claim on its merits. The panel
    held that the broad waiver of sovereign immunity found in
    § 702 of the Administrative Procedure Act (“APA”) waived
    sovereign immunity for all non-monetary claims, and § 704
    of the APA’s final agency action requirement constrained
    only actions brought under the APA. The panel concluded
    that the Nation’s breach of trust claim sought relief other than
    money damages, and the waiver of sovereign immunity in
    § 702 applied squarely to the claim.
    
        Because the panel reversed the district court’s dismissal
    of the Nation’s breach of trust claim, the panel held that the
    Nation’s appeal from the district court’s denial of its Rule
    60(b) motion was moot to the extent it sought to amend its
    complaint to plead additional or alternative waivers of
    sovereign immunity. The panel held that the Nation was not
    entitled to relief under Rule 60(b) to amend its pleadings for
    its National Environmental Policy Act allegations.
    
    
                             COUNSEL
    
    Scott B. McElroy (argued) and Alice E. Walker, McElroy
    Meyer Walker & Condon P.C., Boulder, Colorado; M.
    Kathryn Hoover and Stanley M. Pollack, Navajo Nation
    Department of Justice, Window Rock, Arizona; for Plaintiff-
    Appellant.
              NAVAJO NATION V. DEP’T OF INTERIOR             5
    
    Elizabeth Ann Peterson (argued), Edward S. Geldermann,
    Ellen J. Durkee, and William B. Lazarus, Attorneys; John C.
    Cruden, Assistant Attorney General; United States
    Department of Justice, Washington, D.C.; Scott Bergstrom
    and Robert F. Snow, Office of the Solicitor, United States
    Department of the Interior, Washington, D.C.; for
    Defendants-Appellees.
    
    L. William Staudenmaier III (argued), Phoenix, Arizona, for
    Intervenor-Defendants-Appellees.
    
    Michael J. Pearce, Maguire Pearce & Storey PLLC, Phoenix,
    Arizona; Kelly Brown and Kenneth C. Slowinski, Chief
    Counsel, Arizona Department of Water Resources, Phoenix,
    Arizona; for Intervenor-Defendants-Appellees State of
    Arizona and Arizona Power Authority.
    
    John B. Weldon, Jr. and Lisa M. McKnight, Salmon Lewis &
    Weldon PLC, Phoenix, Arizona; for Intervenor-Defendants-
    Appellees Salt River Project Agricultural Improvement and
    Power District and Salt River Valley Water Users’
    Association.
    
    Stuart Somach and Robert Hoffman, Somach Simmons &
    Dunn, Sacramento, California; for for Intervenor-Defendant-
    Appellee Central Arizona Water Conservation District.
    
    Lauren J. Caster, Special Deputy Counsel, and Gregory L.
    Adams, Fennermore Craig P.C., Phoenix, Arizona; Jennifer
    T. Crandell, Special Counsel Attorney General; Adam Paul
    Laxalt, Attorney General; Office of the Nevada Attorney
    General; for Intervenor-Defendant-Appellee State of Nevada;
    Colorado River Commission of Nevada; Southern Nevada
    Water Authority.
    6         NAVAJO NATION V. DEP’T OF INTERIOR
    
    Adam C. Kear, Chief Deputy General Counsel; Joseph A.
    Venderhorst, Assistant General Counsel; Marcia Scully,
    General Counsel; The Metropolitan Water District of
    Southern California, Los Angeles, California; for for
    Intervenor-Defendant-Appellee Metropolitan Water District
    of Southern California.
    
    Steven B. Abbott, Redwine and Sherrill, Riverside,
    California, for Intervenor-Defendant-Appellee Coachella
    Valley Water District.
    
    Joanna M. Smith Hoff, Assistant Counsel, Imperial Irrigation
    District, Imperial, California; Charles T. Dumars, Law &
    Resource Planning Associates P.C., Albuquerque, New
    Mexico; for Intervenor-Defendant-Appellee Imperial
    Irrigation District.
    
    Steven G. Martin and Steven M. Anderson, Best Best &
    Krieger LLP, Riverside, California, for Intervenor-
    Defendants-Appellees Coachella Valley Water District and
    The Metropolitan Water District of Southern California.
    
    Shanti Rosset, Assistant Attorney General; Karen M. Kwon,
    First Assistant Attorney General; Cynthia Coffman, Attorney
    General; Attorney General’s Office, Denver, Colorado; for
    Intervenor-Defendant-Appellee State of Colorado.
               NAVAJO NATION V. DEP’T OF INTERIOR                  7
    
                              OPINION
    
    BERZON, Circuit Judge:
    
        The Department of the Interior (“Interior” or “the
    Secretary”) oversees the control, storage, and delivery to the
    Western states of the waters of the Colorado River. In most
    years, each state in the Colorado River Basin receives a fixed
    amount of water from the river; in “surplus” and “shortage”
    years, that amount changes. In the face of unprecedented
    drought and ever-increasing demand for water, Interior
    published guidelines in 2001 and 2008 to clarify how it would
    make these “surplus” and “shortage” determinations from
    year to year. This case concerns challenges to those
    guidelines by the Navajo Nation (“Nation”), a federally
    recognized Indian tribe.
    
        The Nation occupies vast reservation lands along the
    Colorado River but has no judicially decreed right to its
    waters. Aggrieved by its lack of enforceable rights to
    Colorado River water, the Nation filed suit to challenge the
    surplus and shortage guidelines, alleging principally that
    Interior neglected to consider the guidelines’ impact on its
    potential, but as-yet unadjudicated, water rights in the
    Colorado River and so violated the National Environmental
    Policy Act (“NEPA”). The Nation also charged Interior with
    more broadly breaching the trust duties the government owes
    the Nation by failing to account for or safeguard the tribe’s
    interests in and rights to water in the river. The district court
    rejected all of the Nation’s challenges, which are now raised
    anew here.
    8            NAVAJO NATION V. DEP’T OF INTERIOR
    
                            I. BACKGROUND
    
        A. The Navajo Nation
    
        The Nation is a federally recognized Indian tribe whose
    reservation lands sprawl over 13 million acres in the
    American Southwest. 1           The Navajo Reservation
    (“Reservation”), the largest Indian reservation in the United
    States, was established by treaty in 1868 and grew piecemeal
    between 1868 and 1934, as lands were added to it by treaty,
    executive order, and statute. The Reservation covers parts of
    Arizona, New Mexico, and Utah, and lies almost entirely
    within the drainage basin of the Colorado River,2 which
    demarcates much of the Reservation’s western boundary.
    Aside from the federal government, the Nation is the largest
    riparian landowner along the Colorado.
    
        The United States is trustee of the Nation’s tribal lands
    and resources. United States v. Mitchell, 
    463 U.S. 206
    , 225
    (1983). The Nation’s claims in this action arise either
    directly or derivatively from the alleged breach of fiduciary
    responsibilities created by this trust relationship.
    
    
    
    
        1
          These facts are drawn from the complaint, which we accept as true
    for purposes of reviewing a motion to dismiss for lack of subject-matter
    jurisdiction. See Courthouse News Serv. v. Planet, 
    750 F.3d 776
    , 780 (9th
    Cir. 2014).
        2
          A river “drains” the surface water that flows into it; a “drainage
    basin” is the whole tract of land “drained by a river and its tributaries.”
    WEBSTER’S THIRD NEW INT’L DICTIONARY 182, 685 (1971).
                NAVAJO NATION V. DEP’T OF INTERIOR                          9
    
        B. The Law of the River
    
        The Colorado River begins in the mountains of Colorado
    and flows nearly 1,300 miles to the Sea of Cortez, adjacent to
    the Sonoran Desert in Mexico, draining an area amounting to
    almost one-twelfth of the continental United States. Arizona
    v. California, 
    373 U.S. 546
    , 552 (1963). “Much of this large
    basin is so arid that it is, as it always has been, largely
    dependent upon managed use of the waters of the Colorado
    River System to make it productive and inhabitable.” Id.
    
        Because of the Colorado’s importance to the West, river
    water is pervasively managed, regulated, and contested.
    Interior, through the Bureau of Reclamation, operates large
    dams and reservoirs that control the flow of the Colorado’s
    waters. Additionally, federal statutory law and regulations,
    Supreme Court decrees, interstate compacts, state and federal
    common law, and treaties foreign and domestic affect the
    allocation and management of the River’s waters. This
    byzantine legal regime is known as “The Law of the River,”
    the relevant portions of which we summarize below.
    
             i. The 1922 Compact3
    
       In 1922, seven states entered into an interstate compact to
    govern the gross allocation of water from the Colorado River.
    The states wanted to assure that the Colorado became a
    
    
        3
          The Court may take judicial notice of compacts, statutes, and
    regulations not included in the plaintiff’s complaint. See, e.g., Cachil
    Dehe Band of Wintun Indians of the Colusa Indian Cmty. v. California,
    
    547 F.3d 962
    , 968 n.4 (9th Cir. 2008) (noticing tribal-state compacts);
    United States v. Woods, 
    335 F.3d 993
    , 1001 (9th Cir. 2003) (holding it
    was proper for the district court to notice published agency regulations).
    10           NAVAJO NATION V. DEP’T OF INTERIOR
    
    regular, dependable source of water; they recognized that
    doing so would require a regional or national solution.4
    
        The Colorado River Compact (“1922 Compact”) entered
    into by the affected states divided the river in two at Lee
    Ferry, Arizona. 1922 Compact art. II, reprinted in 70 Cong.
    Rec. 324 (Dec. 10, 1928). The “Upper Basin” States5
    (Colorado, New Mexico, Utah, and Wyoming) and the
    “Lower Basin” States (Arizona, California, and Nevada)
    would each be entitled to 7.5 million acre-feet per year
    (“mafy”) of water.6 Id. arts. II–III. This suit concerns water
    in the Lower Basin only. The Compact stated that it did not
    establish, alter, or impair any present perfected rights within
    the States, id. art VIII, nor “affect[] the obligations of the
    United States of America to Indian tribes,” id. art VII.
    Commissioners from each state signed the compact, but it
    became effective under its terms only if ratified by Congress
    and the legislature of each signatory state. Id. art XI.
    
    
    
    
         4
          See Arizona v. California, 373 U.S. at 554. Fears of over-
    appropriation by California played a role in the compact as well. Id. at
    556.
         5
          The Compact refers to states of the “Upper Division” and “Lower
    Division,” see id. art. II. We instead follow the custom of the Supreme
    Court and refer to Arizona, California, and Nevada collectively as the
    “Lower Basin” states. See, e.g., Arizona v. California, 373 U.S. at
    558–59.
         6
           An acre-foot is the volume of water that would cover an acre of land
    to the depth of one foot. WEBSTER’S THIRD NEW INT’L DICTIONARY 19.
                NAVAJO NATION V. DEP’T OF INTERIOR                        11
    
             ii. The Boulder Canyon Project Act
    
        In 1928, Congress addressed the management of the
    Colorado River through the Boulder Canyon Project Act,
    43 U.S.C. § 617 et seq. The Act conditionally approved the
    1922 Compact and authorized the Secretary of the Interior to
    construct a massive dam at Boulder Canyon (now the Hoover
    Dam) and the attendant water delivery infrastructure (a
    reservoir, now Lake Mead, and delivery canals) to effectuate
    the allocations laid out in the 1922 Compact. 43 U.S.C.
    § 617. The Act also allowed the Secretary to enter into
    contracts with users for the storage and delivery of water in
    the Project’s reservoir. Id. § 617d.
    
        Most relevant for our purposes, the Act authorized the
    three Lower Basin States to negotiate a second compact
    divvying up their 7.5 mafy share of the Colorado’s
    water—4.4 to California, 2.8 to Arizona, and 0.3 (i.e.,
    300,000 afy) to Nevada. If entered into, this agreement
    would take effect once all three states had ratified the 1922
    Compact. Id. § 617c(a).
    
        The Boulder Canyon Project Act became effective in
    1929, after six of the seven states ratified the Compact, see
    id., and California “irrevocably and unconditionally”
    covenanted to limit its consumption to 4.4 mafy.7 Arizona
    did not ratify the 1922 Compact, so the Lower Basin states
    never agreed to the second compact that would have
    
    
        7
           See Act of March 4, 1929, in Statutes and Amendments to the
    California Codes, ch. 16, 48th Session (1929), at 38–39. The Boulder
    Canyon Project Act lowered the 1922 Compact’s ratification threshold: six
    states would suffice for ratification as long as California was among them
    and committed to a ceiling on its apportionment. See 43 U.S.C. § 617c(a).
    12           NAVAJO NATION V. DEP’T OF INTERIOR
    
    apportioned the 7.5 mafy among the three states. See Arizona
    v. California, 373 U.S. at 561–62. The Secretary nonetheless
    entered into water contracts with the Lower Basin states.8 Id.
    at 562.
    
             iii. Arizona v. California
    
        Conflict over Lower Basin water continued between
    Arizona and California, coming to a boil in 1952 when
    Arizona sued California in an original action in the Supreme
    Court. The United States intervened to represent federal
    interests, including the interests of 25 Indian tribes,9 and other
    Basin States intervened as well. Based on the report,
    findings, and recommended decree of a Special Master, see
    Arizona v. California, 373 U.S. at 551, the Court issued a
    decree clarifying each state’s rights to Lower Basin water.
    See Arizona v. California, 
    376 U.S. 340
     (1964) (“1964
    Decree”).
    
        The 1964 Decree affirmed the provisional apportionments
    set out in the Boulder Canyon Project Act. In years when the
    Secretary determined that 7.5 maf of water was available for
    release to the Lower Basin states, Nevada was entitled to 0.3
    mafy; Arizona to 2.8 mafy; and California to the lion’s share,
    4.4 mafy. 1964 Decree art. II(B)(1), 376 U.S. at 342. The
    Decree also parceled out the relative shares each Lower Basin
    
         8
           While the Secretary contracted with Arizona and Nevada for their
    shares as laid out in the Boulder Canyon Project Act, 43 U.S.C. § 617c(a),
    it contracted to deliver 5.36 mafy to California, significantly more than the
    4.4 mafy the Act contemplated. Arizona v. California, 373 U.S. at 562.
         9
          See Findings of Fact and Conclusions of Law Proposed by the
    United States of America, at 51, Arizona v. California, 
    373 U.S. 546
    (1963) (No. 9, Original).
               NAVAJO NATION V. DEP’T OF INTERIOR                   13
    
    State would get in years in which, “as determined by the
    Secretary of the Interior,” there was surplus water available.10
    1964 Decree art. II(B)(2), 376 U.S. at 342. If, instead, the
    Secretary determined in a given year that there was a
    shortage of water—less than 7.5 maf available in the Lower
    Basin—the Decree required the Bureau of Reclamation first
    to “provid[e] for satisfaction of present perfected rights in the
    order of their priority dates without regard to state lines.” Id.
    art. II(B)(3), 376 U.S. at 342. Then, “after consultation with
    the parties to major delivery contracts and such
    representatives as the respective States may designate, [the
    Secretary] may apportion the amount remaining available for
    consumptive use in such manner as is consistent with the
    Boulder Canyon Project Act,” the Decree, and other
    applicable federal statutes. Id.
    
            iv. Winters rights
    
        In addition to partitioning the Colorado River waters
    among the three Lower Basin States, the 1964 Decree
    adjudicated the “Winters rights” of five Indian tribes.
    Winters v. United States held that “when the Federal
    Government withdraws its land from the public domain and
    reserves it for a federal purpose, the Government, by
    implication, reserves appurtenant water then unappropriated
    to the extent needed to accomplish the purpose of the
    reservation.” Cappaert v. United States, 
    426 U.S. 128
    , 138
    (1976); see also Winters v. United States, 
    207 U.S. 564
    , 577
    (1908). The rights to this water—also called “reserved
    rights”—vest on the original date of withdrawal of the land
    
    
    
       10
          California would receive 50% of the surplus, Arizona 46%, and
    Nevada 4%. See 1964 Decree art. II(B)(2), 376 U.S. at 342.
    14           NAVAJO NATION V. DEP’T OF INTERIOR
    
    and trump the rights of later appropriators.11 Cappaert,
    426 U.S. at 138. For Indian reservations, courts look to the
    treaties, executive orders, and statutes that set aside
    reservation land for the tribe in question.12 Winters rights,
    unlike water rights gained through prior appropriation, are not
    lost through non-use. Colville Confederated Tribes v.
    Walton, 
    647 F.2d 42
    , 51 (9th Cir. 1981).
    
        In Arizona v. California, the Supreme Court reaffirmed
    the vitality of the Winters doctrine, noting that “most of the
    [reservation] lands were of the desert kind—hot, scorching
    sands—and . . . water from the [Colorado] would be essential
    to the life of the Indian people and to the animals they hunted
    and the crops they raised.” 373 U.S. at 599. The Decree
    awarded five tribes a right to Lower Basin water
    commensurate with the “practicably irrigable acreage” of
    each tribe’s reservation. Id. at 600; 1964 Decree art. II(D),
    376 U.S. at 343–45. Following the Special Master’s lead, the
    Court declined to reach the claims of the other twenty tribes,
    including the Navajo Nation’s. See 373 U.S. at 595. The
    Decree made clear, however, that it did not affect “[t]he rights
    or priorities, except as specific provision is made herein, of
    any Indian Reservation.” Id. art. VIII(C), 376 U.S. at
    352–53.
    
    
    
         11
           Most water rights are acquired through appropriation. “Under the
    doctrine of prior appropriation, the first to divert and use water
    beneficially establishes a right to its continued use as long as the water is
    beneficially diverted.” Cappaert, 426 U.S. at 139 n.5.
         12
            See, e.g., Agua Caliente Band of Cahuilla Indians v. Coachella
    Valley Water Dist., 
    849 F.3d 1262
    , 1265 (9th Cir. 2017) (dating the
    reservation of water from the Executive Orders that withdrew land for the
    tribe), petition for cert. filed (U.S. July 3, 2017) (No. 17-42).
                 NAVAJO NATION V. DEP’T OF INTERIOR                        15
    
        The Supreme Court retained jurisdiction over the suit,
    1964 Decree art. IX, 376 U.S. at 353, and, over the next few
    decades, announced several sequels to the original opinion.
    See, e.g., Arizona v. California, 
    460 U.S. 605
     (1983) (holding
    that res judicata barred re-opening the quantification of
    tribes’ Winters rights); Arizona v. California, 
    530 U.S. 392
    (2000) (holding that res judicata did not bar certain claims
    stemming from reservation boundary disputes); Arizona v.
    California, 
    547 U.S. 150
     (2006) (consolidating prior decrees
    and implementing the water rights settlement concerning one
    Indian reservation).
    
        C. The Nation’s Rights to Water in the Colorado
           River
    
        Under the Winters doctrine, when setting aside lands for
    the Navajo Nation, the United States impliedly reserved for
    the tribe “the waters without which their lands would [be]
    useless.” Arizona v. California, 373 U.S. at 600. As noted
    above, in the first iteration of Arizona v. California, the
    Special Master—and the Supreme Court—declined to reach
    the Winters claim put forward on behalf of the Nation.13 Id.
    at 595. The Nation has in the last half-century repeatedly
    
    
    
        13
           The Nation attempted to intervene in the suit on its own behalf, but
    the United States successfully opposed the motion. See Response of the
    United States to the Motion on Behalf of the Navajo Tribe of Indians for
    Leave to Intervene, Arizona v. California, 
    373 U.S. 546
     (1963) (No. 8,
    Original). The claim filed on behalf of the Nation was for water in the
    Little Colorado River, a tributary of the Lower Colorado River. See
    Findings of Fact and Conclusions of Law Proposed by the United States
    of America, supra note 9, at 58. The Special Master, and the Court,
    declined to reach “particularly those [claims] relating to tributaries.”
    Arizona v. California, 373 U.S. at 595.
    16           NAVAJO NATION V. DEP’T OF INTERIOR
    
    asserted its right to water in the Lower Colorado,14 but its
    potential water rights in the Lower Colorado have never been
    adjudicated or quantified.
    
         D. Implementing the Law of the River
    
        The Secretary “is vested with considerable control over
    the apportionment of Colorado River waters,” Arizona v.
    California, 373 U.S. at 593, and is generally responsible for
    the management and delivery of water from the Colorado
    pursuant to the Law of the River. Each state’s water portion
    is dictated by the 1964 Decree, as is the allocation of surplus
    water; Arizona v. California accords discretion to the
    
    
         14
           The Nation has been, and is, actively seeking additional water for
    the Reservation in several forums. The Nation’s rights to water from the
    Little Colorado River, which flows through eastern Arizona and western
    New Mexico,
    
    are being considered in an ongoing adjudication in Arizona state court.
    See In re General Adjudication of All Rights to Use Water in Little
    Colorado River Sys. & Source, No. CV 6417 (Ariz. Super. Ct., Apache
    Cty.). The Nation filed its claim in that adjudication in 1985. See
    Statement of Claimant The Navajo Nation, In re General Adjudication,
    No. CV 6417 (Nov. 27, 1985). The Nation may also receive an allocation
    of water from the Central Arizona Project (“CAP”), a major diversion
    canal in Arizona. In the Arizona Water Settlements Act of 2004, Pub. L.
    No. 108-451, 118 Stat. 3478, 3487 (2004), Congress directed the Secretary
    to set aside a specified amount of water from the CAP for distribution to
    the Navajo Nation—6,411 afy—should the Nation obtain rights through
    ongoing settlement negotiations. Congress conditioned the Nation’s
    access to CAP water on approval of a water rights settlement by Congress
    before 2030. No such settlement has been reached to date.
    
         Finally, the Nation requested that the Secretary of the Interior contract
    with the Nation for any of the water allocated to Arizona not committed
    to other users. The Secretary has not agreed to such a contract.
              NAVAJO NATION V. DEP’T OF INTERIOR                17
    
    Secretary to apportion shortfalls in years of shortage, see id.
    at 593–94. The 1964 Decree also commits the determination
    of surplus and shortage years to the Secretary. See 1964
    Decree, art. II(B)(2)–(3), 376 U.S. at 342.
    
        The Colorado River Basin Project Act of 1968 required
    the Secretary to adopt criteria for the coordinated
    management of Lake Mead and Lake Powell, the reservoirs
    under the Secretary’s management in the Lower Basin. See
    43 U.S.C. 1552(a)–(b). These “Operating Criteria” for the
    coordinated management of the storage reservoirs in the
    Lower Basin help the Secretary determine whether to declare
    a shortage or surplus in any given year. See Colorado River
    Reservoirs: Coordinated Long-Range Operation, 35 Fed.
    Reg. 8951 (June 10, 1970). Before adopting the challenged
    guidelines, the Secretary made year-to-year determinations
    about declaring a shortage or surplus, relying on a varying
    combination of factors, including the year-end water levels in
    Lake Mead and Lake Powell, potential run-off conditions,
    and projected water demands. See Colorado River Interim
    Surplus Guidelines, 66 Fed. Reg. 7772, 7774 (Jan. 25, 2001)
    (describing the factors the Secretary historically considered
    in making shortage and surplus declarations). This ad hoc
    approach bred uncertainty about the possibility of surplus or
    shortage in any particular year, which grew untenable as
    demand for surplus water increased. Id.. To partially remedy
    this problem, the Secretary first decided to adopt more
    specific, objective criteria for making the annual
    determinations regarding surplus water. Id.. Guidelines for
    determining shortages came later.
    18          NAVAJO NATION V. DEP’T OF INTERIOR
    
         E. The Challenged Surplus and Shortage Guidelines
    
            i. Surplus Guidelines
    
        In 2001, the Secretary adopted the Colorado River Interim
    Surplus Guidelines (“Surplus Guidelines”). The Guidelines
    would “determine the conditions under which the Secretary
    would declare the availability of surplus water for use within”
    the Lower Basin states every year. See Surplus Guidelines,
    66 Fed. Reg. at 7773. This declaration and allocation of a
    surplus, if there was one, were to be consistent with the 1964
    Decree, the Colorado River Basin Project Act, and the
    Operating Criteria adopted pursuant to that Act. The Surplus
    Guidelines aimed to provide greater consistency and
    predictability in the Secretary’s surplus declarations from
    year to year, in light of growing (and competing) demands for
    surplus water, and of California’s continued diversion of
    more than its allotted 4.4 mafy share of Lower Basin water.
    See id. at 7773–74.
    
        The Surplus Guidelines pegged the surplus declaration to
    the year-end water level in Lake Mead. See id. at 7775. If
    that water level equaled or exceeded the highest “tier,”15
    surplus water would be made available for all types of water
    uses. At or below the lowest “tier,” a “Normal” or
    “Shortage” year would be declared and no surplus water
    would be released. At the middle tier, water would be
    released subject to use restrictions. See id. at 7780. These
    “interim” guidelines were set to expire in 2016. See id. at
    7773–74, 7780–81.
    
    
    
        15
           The three “tiers” correspond to three water surface elevations in
    Lake Mead. Surplus Guidelines, 66 Fed. Reg. at 7775.
               NAVAJO NATION V. DEP’T OF INTERIOR                  19
    
        Before adopting the Surplus Guidelines and issuing the
    Record of Decision, the Secretary published a draft
    environmental impact statement (“EIS”) assessing the
    environmental impacts of four alternatives along with the
    “No-Action Alternative.” See Colorado River Interim
    Surplus Criteria, Notice of Availability of Draft EIS, 65 Fed.
    Reg. 42,028, 42,029 (July 7, 2000). In December 2000, after
    receiving comments on its draft, the Secretary issued his final
    EIS (“FEIS”),16 and one month later its Record of Decision,
    adopting the preferred alternative as the Surplus Guidelines.
    See Surplus Guidelines, 66 Fed. Reg. at 7772.
    
        During the development of the EIS, the Secretary
    consulted with various Indian tribes whose lands or water
    resources lay in the Lower Basin. See Final Environmental
    Impact Statement, Colorado River Interim Surplus Criteria
    (“Surplus Guidelines FEIS”), Executive Summary, at 33, 44.
    Both the Navajo Nation and the Colorado River Basin Ten
    Tribes Partnership, of which the Nation is a member,
    submitted comments on the draft, calling it “fundamentally
    flawed” and “deeply and fatally flawed.” Surplus Guidelines
    FEIS at B-187, B-196. The Nation complained that the
    proposed Surplus Guidelines did not account for its
    unquantified rights in the Lower Basin and fostered reliance
    by third parties on water to which it was, or would or could
    be, entitled. Id. at B-187 to B-190. The Ten Tribes objected
    to the lack of consideration of “Indian Trust Assets” and
    claimed that the Guidelines would generally frustrate the
    
    
    
        16
            The full Surplus Guidelines FEIS is available at Final
    Environmental Impact Statement: Colorado River Interim Surplus
    Criteria, https://www.usbr.gov/lc/region/g4000/surplus/SURPLUS_FEI
    S.html (last updated Jan. 16, 2007).
    20         NAVAJO NATION V. DEP’T OF INTERIOR
    
    development and protection of Indian water rights. Id. at B-
    196 to B-215.
    
        The Secretary responded that it was actively assisting
    tribes in obtaining their water rights, and it disagreed that the
    Guidelines would hamper or decrease incentives to develop
    Indian water rights in the Lower Basin. Id. at B-189; B-203
    to B-205. “The Department does not believe this proposed
    action would preclude the Tribes or any entitlement holder
    from using their Colorado River entitlement. The interim
    surplus criteria will not alter the quantity or priority of Tribal
    entitlements.” Id. at B-204.
    
            ii. Shortage Guidelines
    
        The adoption of criteria for declarations of surplus water
    in the Colorado River coincided with the driest eight-year
    period in the recorded history of the River. See Colorado
    River Interim Guidelines for Lower Basin Shortages and
    Coordinated Operations for Lake Powell and Lake Mead
    (“Shortage Guidelines”), 73 Fed. Reg. 19,873 (Apr. 11,
    2008). This historic drought, combined with increasing
    demand for river water, led the Secretary to implement
    guidelines for declaring shortages as well. These guidelines
    would, like the Surplus Guidelines, offer greater
    predictability to mainstream Colorado water users regarding
    the supply of water in any given year. The Shortage
    Guidelines also created mechanisms to encourage water
    banking and conservation that would provide greater year-to-
    year flexibility for the Secretary and water users. See Final
    Environmental Impact Statement, Shortage Guidelines
                NAVAJO NATION V. DEP’T OF INTERIOR                        21
    
    (“Shortage Guidelines FEIS”), Executive Summary, at ES-1
    to ES-2.17
    
        In 2008, the Secretary adopted the Shortage Guidelines
    and issued an accompanying Record of Decision. See
    Shortage Guidelines, 73 Fed. Reg. at 19,873. Like the
    Surplus Guidelines, the Shortage Guidelines linked the
    Secretary’s declaration of a shortage to the level of water in
    Lake Mead. See id. at 19,874; Shortage Guidelines FEIS,
    Executive Summary, at ES-6. The Shortage Guidelines also
    implemented procedures for the coordinated operation of the
    Lake Mead and Lake Powell reservoirs in times of low water
    and shortage. See Shortage Guidelines, 73 Fed. Reg. at
    19,874.
    
        Beyond delineating when and how the Secretary would
    declare a shortage, the Shortage Guidelines also provided for
    the creation of “Intentionally Created Surplus” (“ICS”) water.
    Water users could bank ICS water by either (i) conserving
    water through a variety of measures18 or (ii) importing water
    from outside the Colorado (“non-system water”) into the
    Lower Basin system. Id. at 19,877, 19,883, 19,887. The
    Guidelines also modified the Surplus Guidelines and
    extended them through 2026. Id. at 19,874.
    
    
    
        17
           The full Shortage Guidelines FEIS is available at Colorado River
    Interim Guidelines for Lower Basin Shortages and Coordinated
    Operations for Lakes Powell and Mead: Final Environmental Impact
    Statement, https://www.usbr.gov/lc/region/programs/strategies/FEIS/#VolI
    (last updated Nov. 2007).
        18
          These measures include fallowing fields, lining canals, desalinating
    non-river water, or implementing other “extraordinary conservation
    measures.” Id. at 19,886.
    22           NAVAJO NATION V. DEP’T OF INTERIOR
    
        In its comments on the draft EIS for the Shortage
    Guidelines, the Nation largely reiterated its objections to the
    Surplus Guidelines. See Shortage Guidelines FEIS, vol. IV,
    at IT-103 to IT-108. The FEIS included a discussion of
    Indian Trust Assets, including water rights.19 See id. at 3–87.
    The Shortage Guidelines FEIS recognized that the Nation’s
    unquantified Winters rights in the Lower Basin constituted an
    Indian Trust Asset, and noted that the Nation maintains that
    some portion of its Winters rights will need to be satisfied
    from the Colorado River. Id. at 3–96. Ultimately, however,
    the FEIS concluded that “[t]he proposed federal action would
    not result in any substantive effects on [Indian Trust Assets].”
    See id. at 5–12. To the Nation’s concerns about possible
    injury to its unquantified water rights, the Secretary
    responded:
    
              No vested water right of any kind, quantified
              or unquantified, including federally reserved
              Indian rights to Colorado River water . . . will
              be altered as a result of any of the alternatives
              under consideration.
    
                  To the extent that additional Tribal water
              rights are developed, established or quantified
              during the interim period of the proposed
              federal action, the United States will manage
              Colorado River facilities to deliver water
    
    
    
    
         19
           The FEIS also considered potential impacts on tribal historic
    properties, tribal sacred sites, cultural resources, and biological resources.
    See Shortage Guidelines FEIS at 4-244 to 4-250.
                NAVAJO NATION V. DEP’T OF INTERIOR                        23
    
             consistent with such additional water rights, if
             any, pursuant to federal law.
    
    See id. at 4-249.
    
                    II. PROCEDURAL HISTORY
    
         The Nation filed its initial complaint against the
    Department of the Interior, the Secretary, the Bureau of
    Reclamation, and the Bureau of Indian Affairs (collectively
    “Federal Defendants”) in March 2003.              The Nation
    challenged under the Administrative Procedure Act (“APA”),
    5 U.S.C. §§ 701–706, the 2001 Surplus Guidelines,20 alleging
    that the Secretary’s failure adequately to consider and protect
    the Nation’s rights to, and interest in, water violated the
    National Environmental Policy Act (“NEPA”), 42 U.S.C.
    § 4321 et seq. The Nation further alleged that the United
    States had breached its trust obligations to the Nation by
    failing to consider or protect the Nation’s water rights while
    managing the Colorado River.
    
        Various states and local government entities from
    California, Arizona, Nevada, and Colorado intervened as
    defendants.21 In October 2004, on the joint motion of the
    
    
         20
            The Nation also challenged several other agency actions in its
    complaint. Only the Nation’s First, Second, and Seventh Claims for relief
    are at issue on appeal.
        21
           From Arizona, the intervenors are the State of Arizona, Salt River
    Project Agricultural Improvement and Power District, Salt River Water
    Users’ Association, and Central Arizona Water Conservation District;
    from California, the Coachella Valley Water District, Imperial Irrigation
    District, and the Metropolitan Water District of Southern California; and
    from Nevada, the State of Nevada, Colorado River Commission of
    24          NAVAJO NATION V. DEP’T OF INTERIOR
    
    parties, the district court stayed proceedings to allow for
    settlement negotiations.
    
        In 2013, after almost a decade of unsuccessful settlement
    negotiations, the district court lifted the stay and the litigation
    started anew. The Nation twice amended its complaint,
    adding a challenge to the 2008 Shortage Guidelines, and the
    district court then granted motions to dismiss the Nation’s
    Second Amended Complaint without prejudice, holding that
    the Nation lacked Article III standing to bring its NEPA
    claims and that its breach of trust claim was barred by
    sovereign immunity. At the hearing on the motions to
    dismiss, the district court inquired whether, if necessary, the
    Nation preferred a dismissal with leave to amend the
    complaint or a dismissal with prejudice. Notwithstanding the
    Nation’s expressed preference for dismissal with leave to
    amend, the district court ultimately dismissed without leave
    to amend and without prejudice.
    
        The Nation filed a Rule 60(b)(6) motion for relief from
    the final judgment, contending that because the relevant
    statute of limitations had run, the dismissal was effectively
    with prejudice. In the Nation’s view, the district court should
    have re-opened the proceedings and granted it leave to further
    amend its complaint. The district court denied that motion.
    The Nation appeals both orders.
    
    
    
    
    Nevada, and Southern Nevada Water Authority. The State of Colorado
    also intervened. The Arizona, California, and Nevada Intervenor-
    Defendants each filed separate answering briefs in this appeal, and
    Colorado joined the arguments set out in the Arizona and Nevada briefs.
              NAVAJO NATION V. DEP’T OF INTERIOR                25
    
                          III. STANDING
    
        The district court dismissed the Nation’s NEPA claims,
    holding that the alleged harm to the Nation’s unquantified
    Winters rights was too speculative to confer standing.
    Although the district court considered the Nation’s interests
    in adequate water too narrowly, we agree that the Nation
    failed to show it “reasonably probable” that the new
    Guidelines threatened its interests in obtaining adequate
    water. See Citizens for Better Forestry v. U.S. Dep’t of
    Agric., 
    341 F.3d 961
    , 969–70 (9th Cir. 2003). Accordingly,
    we affirm the district court’s dismissal of the NEPA claims.
    
       A. Legal Standards
    
        “[S]tanding is an essential and unchanging part of the
    case-or-controversy requirement of Article III.” Lujan v.
    Defs. of Wildlife, 
    504 U.S. 555
    , 560 (1992). To establish
    standing, a plaintiff must demonstrate “(1) a concrete and
    particularized injury that is ‘actual or imminent, not
    conjectural or hypothetical’; (2) a causal connection between
    the injury and the defendant’s challenged conduct; and (3) a
    likelihood that a favorable decision will redress that injury.”
    Pyramid Lake Paiute Tribe of Indians v. Nev. Dep’t of
    Wildlife, 
    724 F.3d 1181
    , 1187 (9th Cir. 2013) (quoting Lujan,
    504 U.S. at 560–61). Our review of standing is de novo. City
    of Sausalito v. O’Neill, 
    386 F.3d 1186
    , 1196–97 (9th Cir.
    2004).
    
        Where plaintiffs allege a “procedural injury”—that is, that
    the government’s violation of a procedural requirement could
    impair some separate interest of the plaintiffs’—the “normal
    standards for . . . [the] immediacy” of injury are relaxed.
    Lujan, 504 U.S. at 572 n.7. A plaintiff alleging procedural
    26         NAVAJO NATION V. DEP’T OF INTERIOR
    
    harm can demonstrate injury in fact by showing (i) the agency
    violated certain procedural rules, (ii) those rules protect a
    concrete interest of the plaintiff, and (iii) it is “reasonably
    probable” that the challenged action threatens that concrete
    interest. Citizens for Better Forestry, 341 F.3d at 969–70.
    
        The universe of interests procedurally protected by NEPA
    is broad: birdwatchers’ and outdoorsmen’s interests in their
    ability to “picnic, birdwatch, walk, and swim” in a particular
    area, Cantrell v. City of Long Beach, 
    241 F.3d 674
    , 681 (9th
    Cir. 2001); municipalities’ interests “as varied as [their]
    responsibilities, powers, and assets,” City of Sausalito,
    386 F.3d at 1197, including harm to water resources, see
    Churchill Cty. v. Babbitt, 
    150 F.3d 1072
    , 1079 (9th Cir. 1998)
    (identifying harms such as “unknown changes to the
    underground water supply system, and reduced quality of
    local drinking water”); and, as here, Indian tribes’ interest in
    assuring water is available on their reservation lands, see
    Pyramid Lake Paiute, 724 F.3d at 1188 (“[T]he Tribe’s
    interest in maximizing flows to Pyramid Lake . . . is well
    established.”). In any instance, though, the plaintiff must
    assert that the procedural violation could harm an interest
    specific to it, not an abstract interest in assuring that NEPA’s
    procedural requirements for considering environmental
    impacts are followed. “A free-floating assertion of a
    procedural violation, without a concrete link to the interest
    protected by the procedural rules, does not constitute an
    injury in fact.” Ashley Creek Phosphate Co. v. Norton,
    
    420 F.3d 934
    , 938 (9th Cir. 2005).
    
         Although standing inquiries are inherently fact-specific,
    we have laid down some guideposts for determining whether
    it is “reasonably probable” that agency action threatens a
    plaintiff’s interests. For one thing, the imminence inquiry is
               NAVAJO NATION V. DEP’T OF INTERIOR                 27
    
    “less demanding” for procedural harms. Hall v. Norton,
    
    266 F.3d 969
    , 976 (9th Cir. 2001). The challenged action
    need not immediately or directly cause the harm as a first-
    order effect. “[T]hat the potential injury would be the result
    of a chain of events need not doom the standing claim.”
    Idaho Conservation League, 956 F.2d at 1515. “The relevant
    inquiry . . . is whether there is a ‘reasonable probability’ that
    the challenged procedural violation will harm the plaintiffs’
    concrete interests, not how many steps must occur before
    such harm occurs.” Citizens for Better Forestry, 341 F.3d at
    975 (internal citations omitted).
    
        Notwithstanding this relaxed standard, injury in fact
    requires a likelihood that the challenged action, if ultimately
    taken, would threaten a plaintiff’s interests. Where a plaintiff
    cannot “explain in any way how their [interests] may be
    affected” by agency action, it has not suffered an injury in
    fact. Nuclear Info. & Res. Serv. v. Nuclear Regulatory
    Comm’n (“NIRS”), 
    457 F.3d 941
    , 953 (9th Cir. 2006)
    (emphasis in original). So, although a contingent “chain of
    events” can create a “reasonably probable” threat to a
    plaintiff’s interests, a purely speculative sequence of
    occurrences will not meet this standard. See Bell v.
    Bonneville Power Admin., 
    340 F.3d 945
    , 951 (9th Cir. 2003).
    
        B. Discussion
    
        The Navajo Nation proposes for standing purposes that it
    has suffered two sorts of injuries. The Guidelines, the Nation
    maintains, (1) “do[] not account for the unquantified rights of
    the Navajo Nation to the waters of the Lower Basin of the
    Colorado River” and (2) disregard “the unmet needs of the
    Navajo Nation and tribal members for water from the Lower
    Basin.” The two interests are distinct: the former arises out
    28           NAVAJO NATION V. DEP’T OF INTERIOR
    
    of the Nation’s potential reserved water rights under Winters
    v. United States, while the latter is a freestanding interest in
    an adequate water supply for the Nation that exists
    notwithstanding the lack of a decreed right to water. The
    district court’s analysis focused only on the threat to the
    former interest. We consider each in turn.
    
         i. Injury to the Nation’s unquantified Winters rights
    
        The Nation’s first alleged injury is to its as-yet-
    unquantified water rights under Winters v. United States,
    discussed in Part I.B.iv supra. The parties agree that the
    Nation may have unquantified Winters rights in some body of
    water.22 Unquantified Winters rights in the Lower Basin are
    sufficiently concrete interests, the impairment of
    which—coupled with a procedural violation—gives rise to
    standing under NEPA. See Citizens for Better Forestry,
    341 F.3d at 969–70. Indeed, interests in water less concrete
    than unquantified Winters rights have formed the basis for
    standing in the past. In Laub v. U.S. Department of Interior,
    
    342 F.3d 1080
    , 1086 (9th Cir. 2003), for example, the “loss
    of affordable irrigation water” for farmers was a concrete
    
    
         22
            When the United States intervened in Arizona v. California as
    trustee on behalf of the Nation (among other tribes), it presented evidence
    that the Nation had 8,490 acres of irrigable land on which to base a
    Winters claim. See supra notes 9 & 13 and accompanying text. This
    claim, however, was not adjudicated.
    
         In the run-up to the present litigation, the tribe sent to the Bureau of
    Reclamation, during the consultation process on the Guidelines, a “water
    budget” of 76,732 afy that would need to be satisfied out of the Colorado
    River. The defendants contend that whatever water rights the Nation has
    under Winters might be satisfied from sources other than the Lower Basin
    of the Colorado.
                 NAVAJO NATION V. DEP’T OF INTERIOR                         29
    
    interest sufficient for NEPA standing. The precise scope and
    status of the Nation’s possible Winters rights do not concern
    us; it is enough to establish standing to demonstrate that
    however those rights are delineated, they are threatened by
    the Guidelines. But the Nation, we conclude, cannot so
    establish.
    
       The Guidelines do not act directly upon the Nation’s
    unquantified water rights, nor could they.23 So how could the
    Guidelines injure these rights?
    
        The Nation alleges that the Secretary’s actions will create
    a complex and difficult-to-reverse combination of third-party
    reliance and political inertia that will frustrate future attempts
    by the Nation to secure and enjoy its Winters rights. In
    support of its allegation, the Nation posits the following chain
    of events: the Guidelines will “establish[] a system of reliance
    upon the Colorado River that ensures that entities other than
    the Navajo Nation will continue to rely on water supplies
    claimed by, reserved for, needed by, and potentially
    belonging to” it. This reliance will make it “increasingly
    difficult” to satisfy the Nation’s water rights from the Lower
    Basin, and will “limit the Navajo Nation’s future options” for
    securing water, notwithstanding the seniority of its rights.
    Even with senior rights, “the complex process of bringing
    water to the Reservation in a contentious political climate”
    will cast a pall of uncertainty over the Nation’s entitlement.
    
    
    
        23
            “These Guidelines are not intended to, and do not . . . [a]ffect the
    rights of any holder of present perfected rights or reserved rights, which
    rights shall be satisfied within the apportionment of the State within which
    the use is made, and in the Lower Basin, in accordance with the
    Consolidated Decree.” See Shortage Guidelines, 73 Fed. Reg. at 19,884.
    30        NAVAJO NATION V. DEP’T OF INTERIOR
    
        Further developing its hypothetical scenario, the Nation
    argues that the United States will not be “inclined” to re-open
    the issue of water allocation in the Colorado, having forged
    a multi-state consensus for the Guidelines that “appeased the
    Lower Basin states.” The Secretary’s assurance that he will
    manage the Colorado consistent with any Winters rights
    quantified or obtained in the future “ignores political and
    practical realities,” namely the “disincentive” for the United
    States to protect the Nation’s water rights created by this
    system of reliance.
    
        Critically, the Nation does not contend that the Guidelines
    legally impair any unquantified rights it has in Lower Basin
    water. It is common ground among all affected that if the
    Nation obtained decreed rights in the Lower Colorado Basin,
    that entitlement would trump all claims with a later priority
    date, “regardless of whether that water has been developed or
    relied upon by third parties with junior priority dates.”
    Rather, the Nation’s fear is that the Guidelines threaten to
    solidify a web of reliance interests and incentives that, as a
    practical matter, may prevent the Nation (or disincline the
    United States, as its trustee) from enjoying or pursuing those
    decreed rights.
    
        Whether or not the Nation’s realpolitik predictions have
    some truth to them, the posited injury to the Nation’s
    unquantified Winters rights due to the Guidelines is too
    speculative to confer standing. The string of contingencies
    connecting the Guidelines to the frustration of the Nation’s
    rights is not only long—not disqualifying in itself—but
    spindly, too. The Nation’s allegations about the future
    development of reliance interests, and the government’s
    intransigence in upsetting these interests in pursuit of the
                 NAVAJO NATION V. DEP’T OF INTERIOR                           31
    
    Nation’s unadjudicated water rights, are supported by “no
    facts, figures, or data.” See Bell, 340 F.3d at 951.
    
        For example, the Nation offers no support for its
    allegation that the United States will shirk its trust duties for
    fear of upsetting the water rights apple-cart. From the
    Secretary’s stated attempt to avoid “destabilizing litigation,”
    and to gain consensus among the Basin States for the
    challenged Guidelines, the Nation predicts that the United
    States would no longer be inclined to pursue water rights for
    the Nation if such actions necessitated a reallocation of rights
    or potentially upset the multi-state consensus underlying the
    Guidelines. But the tribe offers no actual support for this
    conjecture—no statements by any government officials, for
    example, and no pattern of such behavior in the past.24
    
        Instead, the Nation attempts to shore up its allegations by
    invoking the “presum[ption] that general allegations embrace
    those specific facts that are necessary to support the claim” at
    the pleading stage. Lujan, 504 U.S. at 561 (citations
    omitted).      “Conclusory allegations and unreasonable
    inferences, however, are insufficient to defeat a motion to
    dismiss.” Sanders v. Brown, 
    504 F.3d 903
    , 910 (9th Cir.
    2007). “We do not . . . assume the truth of legal conclusions
    merely because they are cast in the form of factual
    allegations,” and, most especially, where our jurisdiction is at
    stake, “[w]e cannot construe the complaint so liberally as to
    
        24
           The complaint does not spell out this theory—that the United States
    will be disinclined to revisit water rights adjudications after the Guidelines
    are implemented—with any clarity. Nevertheless, we construe the
    complaint, favorably to the Nation, to embrace these allegations of injury.
    We note that at other junctures as well we have relied on the briefs on
    appeal to clarify the complaint, in compliance with our obligation to
    construe the complaint favorably to the plaintiff.
    32          NAVAJO NATION V. DEP’T OF INTERIOR
    
    extend our jurisdiction beyond its constitutional limits.” W.
    Mining Council v. Watt, 
    643 F.2d 618
    , 624 (9th Cir. 1981).
    
        The Nation need not provide smoking-gun allegations of
    harm. But mere “speculation or ‘subjective apprehension’
    about future harm [does not] support standing.” Mayfield v.
    United States, 
    599 F.3d 964
    , 970 (9th Cir. 2010) (citing
    Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
    Inc., 
    528 U.S. 167
    , 184 (2000)). Instead, the Nation must
    plausibly allege that adoption of the Guidelines will in some
    fashion impede the ascertainment and declaration of the
    Nation’s Winters rights. That it has not done.25
    
        Absent more concrete allegations, the Nation cannot show
    that “harm to [its] concrete interests”—here, its possible
    Winters rights—“is reasonably probable,” Citizens for Better
    Forestry, 341 F.3d at 975, and therefore that it has suffered
    the injury needed for standing.
    
    
    
    
         25
           We also question whether the Guidelines create reliance interests
    over and above the pre-existing third-party reliance on the fully
    appropriated (or overappropriated) water of the Colorado River. The
    gross allocations of water in the 1964 Decree would seem primarily
    responsible for reliance on Lower Basin water. Unless the Nation can
    show that the Guidelines are creating new or additional reliance interests,
    it cannot demonstrate it to be reasonably probable that the Guidelines
    themselves pose any threat to the Nation’s interests. See Bell, 340 F.3d at
    951 (emphasizing that the amendments to the power delivery contracts,
    and not the contracts themselves, were the agency actions in question, and
    the amendments alone did not threaten the plaintiff’s interests). See also
    Shortage Guidelines, 73 Fed. Reg. at 19,873 (describing the reliance of the
    West on the Colorado River for drinking water and agriculture).
               NAVAJO NATION V. DEP’T OF INTERIOR                33
    
       ii.     Injury to the Nation’s generalized interest in
               Lower Basin water
    
        In addition to its unadjudicated Winters rights, the Nation
    articulated a different interest—a generalized interest in
    availability for its use of water in the Lower Basin—that, it
    alleged, the Guidelines could adversely affect. We reaffirm
    that the interests upon which a NEPA plaintiff bases its
    standing need not be legal entitlements or substantive rights,
    and that an impairment as a practical matter of access to
    adequate water for use on one’s land can qualify. We hold,
    however, that the Nation again failed to trace a reasonably
    probable link between this second interest in water
    availability and the Guidelines, and so lacks standing under
    this theory of injury as well.
    
        The complaint does adequately allege an interest in water
    availability aside from the tribe’s right to water under
    Winters. It states, for example, that the Guidelines will
    “adversely affect[] the water supply available to satisfy the
    Navajo Nation’s rights or to otherwise meet its needs,”
    (emphasis added) and that the Secretary’s actions “fail to
    protect the Navajo Nation’s rights to and its interests in water
    from the Lower Basin of the Colorado River” (emphasis
    added). Peppered throughout the complaint as well are
    mentions of the Nation’s “needs and rights” (emphasis
    added). The Nation’s repeated invocation of this distinct
    concrete interest—its generalized need for water from the
    Lower Basin, independent of any rights to it—offers an
    alternative basis upon which the Nation could have standing.
    
        This interest, unlike unquantified Winters rights—which
    depend on the special status of the Nation’s home as federally
    reserved land—is similar to that of any large landowner, or
    34         NAVAJO NATION V. DEP’T OF INTERIOR
    
    municipality, or other potential Lower Basin water user.
    Indeed, the Nation is the largest riparian landowner along the
    Colorado River apart from the United States.
    
        If such an interest in adequate water were, to a reasonable
    probability, potentially injured by a proposed federal action,
    the Nation would have standing to challenge NEPA
    compliance. To support NEPA standing, the interest affected
    need not be “a substantive right sounding in property or
    contract,” although it must be “distinct from the interest held
    by the public at large,” Cantrell, 241 F.3d at 681 (citing
    Lujan, 504 U.S. at 562–63). Cantrell, for example, held that
    birdwatchers had legally protected aesthetic interests in a bird
    habitat located on a closed naval station, even though they
    lacked a legal right of access to the base and viewed the birds
    from “areas in and around the station.” Id. at 680. Closer to
    this case, we regularly recognize concrete interests in access
    to water although the plaintiff has no decreed or contractual
    right to water. See Laub, 342 F.3d at 1086 (the “loss of
    affordable irrigation water” for agricultural uses resulting
    from increased competition for irrigation water was sufficient
    injury to a cognizable interest for standing under NEPA);
    Pyramid Lake Paiute, 724 F.3d at 1187–88.
    
         So the Nation’s lack of decreed rights to Lower Basin
    water does not matter for standing. Its interest in, and need
    for, the water is a cognizable interest—much like the farmers’
    interests in Laub—which, when threatened, may support
    standing under NEPA.
    
        Our question, then, is whether the Nation has alleged a
    “reasonably probable” threat from the Guidelines to its
    interest in accessing Lower Basin water. Citizens for Better
                      NAVAJO NATION V. DEP’T OF INTERIOR                   35
    
    Forestry, 341 F.3d at 969. If that interest is not imperiled by
    the Guidelines, the Nation has suffered no injury.
    
         At the outset, we reject the Nation’s reiterated argument
    that the Guidelines impair the Nation’s interests in, and need
    for, Lower Basin water by establishing a system of third-party
    reliance that will make it harder to satisfy this need. For the
    same reasons laid out in Part III.B.i with regard to the
    Nation’s Winters rights, these allegations are too speculative
    to demonstrate injury to any of the Nation’s interests.
    
        But the Nation also alleges—albeit sparsely—another,
    different sort of injury to its generalized interest in Lower
    Basin water: there will simply be less of it available. The
    Surplus Guidelines, the Nation maintains, will “adversely
    affect[] the water supply available to . . . meet [the Nation’s]
    needs” by “allocat[ing] all of the surplus waters of the
    Colorado River” each year. As for the Shortage Guidelines:
    
                   The Nation’s use of mainstream water in the
                   Lower Basin will be charged against
                   Arizona’s Lower Basin apportionment, and
                   Arizona is particularly vulnerable to water
                   shortages, so the Nation reasonably fears that
                   excessive ICS development26 or an increased
                   likelihood of a [declared] shortage will
                   adversely affect its lands by reducing the
                   availability of local water supplies needed to
                   make them productive and livable.
    
    (emphasis added) (internal citations omitted).
    
            26
                 For an explanation of ICS, see supra note 18 and accompanying
    text.
    36         NAVAJO NATION V. DEP’T OF INTERIOR
    
        The constraints imposed by the Law of the River affect
    the plausibility of these averments concerning the Guidelines’
    possible impact on the water available to the Nation. As
    noted above, the Nation’s use of mainstream water “shall be
    charged to [Arizona’s] apportionment.” 1964 Decree art.
    II(B)(4), 376 U.S. at 343. Arizona’s apportionment, as set
    out in the 1922 Compact and reaffirmed in the 1964 Decree,
    is 2.8 mafy. Id. art. II(B)(1), 376 U.S. at 342. In times of
    shortage, the Colorado River Basin Project Act subordinates
    the water rights of Arizona’s largest mainstream diverter, the
    Central Arizona Project (“CAP”), to those of California
    users.27 See 43 U.S.C. § 1521(b). In flush years, the 1964
    Decree grants Arizona 46% of the Lower Basin surplus water.
    1964 Decree art. II(B)(2), 376 U.S. at 342. So the broad
    contours of water allocation, and indeed many of the specific
    ones, are settled by existing law; the Guidelines merely shade
    in the details.
    
        With those parameters in mind, we conclude that the
    Nation has not plausibly alleged that the Guidelines
    themselves—independently of the pre-existing water
    allotments—will impair the tribe’s interest in the availability
    of Lower Basin water. Construed as liberally as possible in
    the Nation’s favor, the complaint does not explain why or
    how the Secretary’s decisions on surplus and shortage
    declarations, or the Shortage Guidelines’ rules on the banking
    of ICS water, threaten to reduce the amount of water
    available to the Nation.
    
        Arizona’s relative allotment of surplus water is fixed by
    the 1964 Decree. See id. The Guidelines do not make any
    
        27
           The Central Arizona Project diverts more than 1.2 mafy of
    Arizona’s 2.8 mafy allocation. Shortage Guidelines FEIS, at 3–35.
               NAVAJO NATION V. DEP’T OF INTERIOR                37
    
    allotments during times of surplus or shortage; they only
    ascertain the parameters for declaring whether there is a
    surplus or shortage. And it is another statutory provision, not
    the Guidelines, that triggers a statutory prioritization scheme
    that disadvantages Arizona. See 43 U.S.C. § 1521(b).
    
         Given the disadvantage to Arizona in times of shortage,
    how the Secretary determines a shortage could, in theory,
    reduce the availability of local water supplies. For instance,
    if the Guidelines declared a shortage more often than would
    some other method of determining a shortage, part of
    Arizona’s allotment (the CAP water) would be subordinated
    to California’s needs, pursuant to the Colorado River Basin
    Project Act, more often than under the alternative approach,
    and less water would be available on the tribe’s land. But the
    Nation’s complaint does not anywhere allege that the
    Guidelines do, in fact, result in “an increased likelihood of a
    shortage” as compared to alternatives; it says only that “the
    likelihood of a shortage determination would be different
    under each of the alternatives in the guidelines proposed in
    the EIS.” Fair enough. But it does not follow, as the Nation
    asserts, that the existence of an array of alternatives itself
    makes it “reasonably probable that unexplored effects
    threaten the Navajo Nation’s interests.”
    
        The Nation’s allegations regarding the ICS provisions of
    the Shortage Guidelines are equally unavailing. The Nation
    does not sketch out why ICS development—the banking of
    extra water saved or procured by water users—will be
    excessive, or how that development would reduce available
    water supplies for the Nation and thus threaten its interests in
    said water. We note that, under the Shortage Guidelines,
    states and users can only “bank” water by offsetting their
    water consumption in some other way. See 73 Fed. Reg. at
    38         NAVAJO NATION V. DEP’T OF INTERIOR
    
    19,886. Because the only water that can be banked this way
    is water saved by users for the purpose of banking it, the
    Nation’s argument that the water would otherwise be
    available to meet the Nation’s needs is difficult to understand.
    
        Ultimately, the Nation has not shown why the Guidelines
    threaten injury to its interests in having water available to
    meet its needs, as compared to any available alternative.
    General references to the “risk of overlooking harmful
    effects”—without describing these effects—or to a “certain
    [e]ffect [on] the outcome of th[e] efforts” by the Nation to
    secure water—without any description of that effect—do not
    suffice.
    
        The cases cited by the Nation in its discussion of the
    reasonably probable threat to its interests do not support its
    position to the contrary. Rather, those cases reiterate the
    requirement that plaintiffs must identify how the challenged
    action threatens, to a reasonable probability, some separate
    interest belonging to them, and determined that the plaintiffs
    had done so.
    
        Douglas County v. Babbitt, 
    48 F.3d 1495
    , 1501 (9th Cir.
    1995), for example, concerned a county’s allegation that its
    lands “could be threatened by how the adjoining federal lands
    [were] managed” with respect to pest, disease, and fire
    control. We held the allegation sufficient to demonstrate
    standing because “a concrete interest . . . could [have been]
    harmed” by the challenged action. Churchill County,
    150 F.3d at 1079, similarly held that an increased risk of “fire
    hazards, airborne particles, [and] erosion,” among other
    things, made it “reasonably probable” that a transfer of water
    rights threatened county land. And in Pyramid Lake Paiute
    Tribe, 724 F.3d at 1188, it was common ground that the
                 NAVAJO NATION V. DEP’T OF INTERIOR                            39
    
    transfer of water rights would “reduce[] flows to Pyramid
    Lake” and thereby injure the Tribe’s interests in maximizing
    flows to the lake. The plaintiffs in those cases thus
    affirmatively demonstrated that agency action would, to a
    reasonable probability, harm their interests.
    
        We do not doubt the Nation’s needs for water, or its
    skepticism that its needs and rights will be front and center as
    the Secretary and other stakeholders vie for water rights in the
    years to come. “The United States historically has not been
    vigorous in litigating to establish or preserve Indian water
    rights.” William C. Canby, Jr., AMERICAN INDIAN LAW 504
    (6th ed. 2015).28 More than half a century has passed since
    the Nation’s Winters rights were first put forward for
    adjudication in Arizona v. California, and they go
    unquantified still.
    
        In short, the challenged Guidelines do not, as far as the
    Nation has alleged, present a reasonable probability of threat
    to either the Nation’s unadjudicated water rights or its
    practical water needs. We therefore affirm the dismissal of
    the Nation’s NEPA claims for lack of standing.
    
                     IV. SOVEREIGN IMMUNITY
    
        The district court dismissed the Nation’s breach of trust
    claim because the United States had not waived sovereign
    immunity for that claim. The Nation alleged, as a breach of
    trust, Interior’s failure “to determine the extent and quantity
    of water rights . . . or otherwise determine the amount of
    water which the [Nation] requires from the Lower Basin to
    
          28
             “The tribes themselves can bring suit, but the cost of such litigation
    is frequently prohibitive.” Id. at 504–05.
    40         NAVAJO NATION V. DEP’T OF INTERIOR
    
    meet the needs of the [Nation].” The Nation’s breach of trust
    claim is thus predicated not on an affirmative action but
    rather a failure to act.
    
         The broad waiver of immunity found in § 702 of the APA
    did not apply, the district court held, because this Court’s
    decisions construing the scope of § 702 limited its waiver to
    (i) challenges to “final agency action” and (ii) constitutional
    claims. Because the Nation “fail[ed] to challenge any
    particular final agency action or bring a constitutional claim,”
    the district court held, it could not avail itself of § 702’s
    waiver.
    
         We now review, and clarify, the scope of that waiver.
    
         A. Legal Background
    
        “The United States, as sovereign, is immune from suit
    save as it consents to be sued.” United States v. Sherwood,
    
    312 U.S. 584
    , 586 (1941) (citations omitted). As the contours
    of any such waiver define a court’s authority to entertain a
    suit against the government, id., each claim against the
    government must rest upon an applicable waiver of
    immunity. We review whether sovereign immunity is waived
    de novo. Orff v. United States, 
    358 F.3d 1137
    , 1142 (9th Cir.
    2004).
                NAVAJO NATION V. DEP’T OF INTERIOR                        41
    
        Congress has enacted several broad waivers of the United
    States’ sovereign immunity.29 The waiver here at issue
    appears in § 702 of the APA, which provides:
    
             [1] A person suffering legal wrong because of
             agency action, or adversely affected or
             aggrieved by agency action within the
             meaning of a relevant statute, is entitled to
             judicial review thereof. [2] An action in a
             court of the United States seeking relief other
             than money damages and stating a claim that
             an agency or an officer or employee thereof
             acted or failed to act in an official capacity . . .
             shall not be dismissed nor relief therein be
             denied on the ground that it is against the
             United States.
    
    5 U.S.C. § 702.
    
        Section 702, notably, does double duty, nestling a broad
    waiver of sovereign immunity (its second sentence) within an
    “omnibus judicial-review provision, which permits suit for
    violations of numerous statutes . . . that do not themselves
    include causes of action for judicial review.” Lexmark Int’l,
    Inc. v. Static Control Components, Inc., 
    134 S. Ct. 1377
    , 1389
    (2014). We are mainly concerned here with the waiver, but,
    as will appear, the relationship between the § 702 cause of
    
    
    
        29
           See, e.g., Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1) (waiving
    immunity as to certain torts committed by government employees acting
    in the scope of their employment); Tucker Act, 28 U.S.C. § 1491(a)(1)
    (waiving immunity as to contract claims and claims for damages not
    sounding in tort).
    42         NAVAJO NATION V. DEP’T OF INTERIOR
    
    action and the § 702 waiver is key to making sense of our
    cases in this area.
    
        The first sentence of § 702—the “omnibus” mechanism
    for review of agency action by courts—was the sum and
    substance of the judicial review provision of the APA as
    originally enacted in 1946. See Administrative Procedure
    Act, Pub. L. No. 79-404 § 10(a), 60 Stat. 237, 243 (1946)
    (codified as amended at 5 U.S.C. § 702). The second
    sentence—which waives sovereign immunity in cases
    “seeking relief other than money damages” for wrongs
    committed by agencies, their officers, and their employees,
    5 U.S.C. § 702—was added in 1976 to clear up a morass of
    federal sovereign immunity jurisprudence, which at the time
    was “illogical,” a “thankless” undertaking for federal courts,
    and “a mass of confusion . . . [and] confusion compounded.”
    H.R. Rep. No. 94-1656, at 6–8 (1976) (internal citations
    omitted).     In addition to ending “the injustice and
    inconsistency” begat by the doctrinal confusion, id. at 10, the
    amendment aimed to “broaden the avenues for judicial review
    of agency action by eliminating the defense of sovereign
    immunity in cases covered by the amendment.” Bowen v.
    Massachusetts, 
    487 U.S. 879
    , 891–92 (1988). Just how broad
    those avenues are is our issue.
    
         B. Ninth Circuit Law on § 702
    
        A perceived conflict between two of our opinions
    construing § 702 lies at the root of this appeal. Compare The
    Presbyterian Church (U.S.A.) v. United States, 
    870 F.2d 518
    ,
    524 (9th Cir. 1989) (holding that “[n]othing in the language
    of [§ 702] suggests that the waiver of sovereign immunity is
    limited to cases challenging . . . ‘agency action’”), with Gallo
    Cattle Co. v. U.S. Dep’t of Agric., 
    159 F.3d 1194
    , 1198 (9th
               NAVAJO NATION V. DEP’T OF INTERIOR                43
    
    Cir. 1998) (noting § 702’s “waiver of sovereign immunity
    contains several limitations,” including § 704’s requirement
    that the challenged conduct be “final agency action” or
    agency action otherwise reviewable by statute). A panel of
    this Court pronounced these two cases “directly contrary” to
    one another, and could find “no way to distinguish them,”
    but, resolving the case before it on other grounds, declined to
    call the case en banc to harmonize the perceived intra-circuit
    conflict. See Gros Ventre Tribe v. United States, 
    469 F.3d 801
    , 809 (9th Cir. 2006); see also EEOC v. Peabody W. Coal
    Co., 
    610 F.3d 1070
    , 1086 (9th Cir. 2010) (noting the same
    “tension” between the same two decisions but again finding
    no need to resolve it). As we face the issue squarely, we
    delve into Presbyterian Church and Gallo Cattle in some
    detail.
    
        Presbyterian Church held that § 702 waived sovereign
    immunity for the plaintiff churches’ First and Fourth
    Amendment claims against the (now-defunct) Immigration
    and Naturalization Service (INS). 870 F.2d at 526 (9th Cir.
    1989). The claims in Presbyterian Church arose from the
    dispatch of INS agents to attend, and furtively record,
    worship services at four Arizona churches as the agents were
    investigating the sanctuary movement, which was aiding
    refugees fleeing civil war in Central America. Id. at 520.
    The INS prevailed in district court on its argument that § 702
    waived sovereign immunity only for claims challenging
    “agency action” as defined in 5 U.S.C. § 551(13). Under that
    definition, “‘agency action’ includes the whole or a part of an
    agency rule, order, license, sanction, relief, or the equivalent
    or denial thereof, or failure to act.” Id. at 524–25. The INS’s
    argument was premised on the first sentence of § 702, which
    grants judicial review to “person[s] suffering legal wrong
    44          NAVAJO NATION V. DEP’T OF INTERIOR
    
    because of agency action, or adversely affected or aggrieved
    by agency action.” 5 U.S.C. § 702.
    
        We reversed, interpreting the second sentence of § 702 as,
    on its face, “an unqualified waiver of sovereign immunity in
    actions seeking nonmonetary relief.” Presbyterian Church,
    870 F.2d at 525. Presbyterian Church noted that the second
    sentence of § 702 does not use the term “agency action.” Id.
    And the legislative history of the waiver provision, which
    Presbyterian Church surveyed at length, evinced Congress’
    intent to “eliminate the sovereign immunity defense in all
    equitable actions for specific relief” against the federal
    government. Id. at 525 (quoting H.R. Rep. No. 94-1656, at
    9 (1976)) (emphasis omitted). Whatever restrictions were
    imposed by the first sentence’s limitation of judicial review
    to “agency action” were absent in the broad waiver legislated
    three decades later, we concluded. Id. at 525. Presbyterian
    Church pronounced that reading in an “agency action”
    limitation to that second, independently enacted provision
    both “offend[ed] the plain meaning of the amendment” and
    flew in the face of the drafting history. Id.
    
        Gallo Cattle Co. v. U.S. Department of Agriculture,
    
    159 F.3d 1194
     (9th Cir. 1998), pointed in a different
    direction, stating that “the APA’s waiver of sovereign
    immunity contains several limitations,” including a proviso
    in § 704 that only “final agency action” and agency action
    otherwise reviewable by statute are subject to judicial
    review.30 Id. at 1198. Gallo Cattle concerned a dairy
    
    
    
         30
           Section 704 provides: “Agency action made reviewable by statute
    and final agency action for which there is no other adequate remedy in a
    court are subject to judicial review. A preliminary, procedural, or
                NAVAJO NATION V. DEP’T OF INTERIOR                        45
    
    producer who sought review in federal district court of a
    denial by an administrative board of its petition for interim
    relief. Id. at 1195–96. Gallo Cattle proposed paying the
    monetary assessments it was challenging on First
    Amendment grounds into escrow, rather than to the dairy
    board, pending the outcome of its constitutional challenge.
    Id. The district court held that it lacked jurisdiction over the
    claim because the statute governing the dairy assessments
    allowed review only after the Secretary of Agriculture had
    decided the merits of Gallo’s petition, id. at 1197–98, and this
    Court affirmed.
    
        Relevant to our analysis, we rejected Gallo Cattle’s
    alternative argument that the APA provided a source of
    jurisdiction, holding that there was no “final agency action”
    under § 704. Id. at 1198–99. The Court identified the final
    agency action requirement of § 704 as a “limitation[]” on
    § 702’s waiver of sovereign immunity, id. at 1198, and thus
    a “jurisdictional” requirement of suit. See id. at 1199
    (holding that the lack of final agency action meant § 704
    “could not vest the district court with jurisdiction to review
    the order”); id. at 1200 (same).
    
        How could there be this limitation, when recently we had
    said there was “no such limitation”? Presbyterian Church,
    870 F.2d at 525. Notably—and inexplicably—Gallo Cattle
    did not cite or discuss Presbyterian Church. Still,
    notwithstanding the dictum in Gros Ventre Tribe, 469 F.3d at
    809, that there is “no way to distinguish” these “directly
    contrary” holdings, a panel of this Court recently did just that.
    
    
    
    intermediate agency action or ruling not directly reviewable is subject to
    review on the review of the final agency action.” 5 U.S.C. § 704.
    46           NAVAJO NATION V. DEP’T OF INTERIOR
    
        Veterans for Common Sense v. Shinseki (“VCS I”),
    
    644 F.3d 845
     (9th Cir. 2011), opinion vacated on reh’g en
    banc, 
    678 F.3d 1013
     (9th Cir. 2012), untangled the Gallo
    Cattle-Presbyterian Church knot. Gallo’s claim for interim
    relief,31 it noted, was brought directly under the
    APA—specifically, the first sentence of § 702, which grants
    judicial review to those people “‘suffering legal wrong
    because of agency action, or adversely affected or aggrieved
    by agency action.’” VCS I, 644 F.3d at 865–66 (quoting
    5 U.S.C. § 702). APA claims, as outlined in the first sentence
    of § 702, are subject to “§ 704’s limitation on what agency
    action is reviewable—meaning subject to ‘judicial review’
    under the first sentence of § 702.” Id. at 866. Claims not
    grounded in the APA, like the constitutional claims in
    Presbyterian Church and VCS I, “do[] not depend on the
    cause of action found in the first sentence of § 702” and thus
    § 704’s limitation does not apply to them. Id. at 867.
    According to VCS I, then, the limitation on the APA’s waiver
    of sovereign immunity discussed in Gallo Cattle is simply
    that a court is foreclosed by § 704 from entertaining claims
    brought under the APA seeking review of non-final agency
    action (and not otherwise permitted by law).32 “[N]o such
    limitation,” Presbyterian Church, 870 F.2d at 525, applies to
    other types of claims (like the constitutional claims in
    Presbyterian Church).
    
    
    
         31
            Gallo appealed to the district court only from the Secretary’s denial
    of interim relief—the escrowing of the disputed assessments. The
    Secretary had not yet passed on, and so Gallo did not appeal, the merits of
    its First Amendment challenge. Gallo Cattle, 159 F.3d at 1198.
         32
          In addition to making reviewable final agency action, the APA
    permits suit to “compel agency action unlawfully withheld or
    unreasonably delayed.” 5 U.S.C. § 706.
                 NAVAJO NATION V. DEP’T OF INTERIOR                           47
    
       VCS I was vacated upon rehearing en banc, so its analysis
    does not stand as the law of the circuit.33 But we believe the
    panel opinion persuasively reconciled Gallo Cattle and
    Presbyterian Church and so follow its lead.
    
        First, the text of the second sentence of § 702 contains no
    limitation to “final agency action,” to APA cases, or to APA
    and constitutional cases. We read statutes as written, subject
    to very limited exceptions, none of which apply here.34 As
    there is no basis for reading into the amendment to § 702
    language that is not there, we should not do so. And, as VCS
    I concluded, nothing in Gallo Cattle requires us to adopt an
    atextual reading of § 702, as Gallo Cattle concerned a cause
    of action under the APA. We therefore hold, as did VCS I,
    that § 702 waives sovereign immunity for all non-monetary
    claims; § 704’s final agency action requirement constrains
    only actions brought under the APA.
    
       The district court concluded otherwise, viewing
    Presbyterian Church as an exception to § 704 for
    constitutional claims only. By so holding, the district court
    took the wrong path.
    
         What Presbyterian Church actually determined was that
    when Congress amended § 702 by adding its second sentence,
    it enacted an “unqualified” waiver of sovereign immunity in
    
    
        33
          Veterans for Common Sense v. Shinseki, 
    678 F.3d 1013
     (9th Cir.
    2012) (en banc).
        34
            “It is well established that when the statute’s language is plain, the
    sole function of the courts—at least where the disposition required by the
    text is not absurd—is to enforce it according to its terms.” Lamie v. U.S.
    Tr., 
    540 U.S. 526
    , 534 (2004).
    48        NAVAJO NATION V. DEP’T OF INTERIOR
    
    “all actions seeking relief from official misconduct except for
    money damages.” Presbyterian Church, 870 F.2d at 525.
    This Court has long so understood the opinion—that is, as
    holding that § 702 waives “whatever sovereign immunity the
    United States enjoyed from prospective relief” with respect
    to “any action for injunctive relief.” Cabrera v. Martin,
    
    973 F.2d 735
    , 741 (9th Cir. 1992) (citing Presbyterian
    Church, 870 F.2d at 524–25) (emphasis omitted); see also
    Hill v. United States, 
    571 F.2d 1098
    , 1102 (9th Cir. 1978)
    (“[Section 702] is cast as a blanket waiver of sovereign
    immunity as to a broad category of actions against the
    government”); Clinton v. Babbitt, 
    180 F.3d 1081
    , 1087 (9th
    Cir. 1999) (holding that § 702 flatly “expressly waived”
    immunity for non-statutory claims for “nonmonetary relief
    against the United States”).
    
        Gallo Cattle is fully consistent with this understanding of
    Presbyterian Church, and of § 702, as Gallo Cattle addressed
    a claim brought directly under the APA. Even if sovereign
    immunity is waived for claims not involving “final agency
    action,” § 704’s requirement that to proceed under the APA,
    agency action must be final or otherwise reviewable by
    statute is an independent element without which courts may
    not determine APA claims. Section 702, notably, expressly
    preserves the § 704 limitations, among many others, by
    providing that nothing in § 702 “affects other limitations on
    judicial review or the power or duty of the court to dismiss
    any action or deny relief on any other appropriate legal or
    equitable ground.” 5 U.S.C. § 702; see also Darby v.
    Cisneros, 
    509 U.S. 137
    , 153 (1993) (noting that the finality
    requirement for actions brought under the APA, 5 U.S.C.
    § 704, is undiminished by § 702’s waiver of sovereign
    immunity).
                 NAVAJO NATION V. DEP’T OF INTERIOR                          49
    
        Read this way, Gallo Cattle has much to say about the
    elements of the APA cause of action, and little to say about
    sovereign immunity.35 As noted, missing from Gallo Cattle
    is any discussion of Presbyterian Church. This significant
    omission is further evidence that Gallo Cattle governs only
    in cases where, unlike Presbyterian Church, the APA
    supplies the cause of action. For non-APA claims, “it is
    Presbyterian Church and not Gallo Cattle that controls.”
    VCS I, 644 F.3d at 866.
    
        Our conclusion—that the second sentence of § 702
    waives sovereign immunity broadly for all causes of action
    that meet its terms, while § 704’s “final agency action”
    limitation applies only to APA claims—is consistent with
    case law in almost all our sibling circuits. In Trudeau v. FTC,
    for example, the D.C. Circuit rejected a government agency’s
    argument that § 702’s waiver is “restricted to conduct that
    falls within th[e] compass” of final agency action. 
    456 F.3d 178
    , 186 (D.C. Cir. 2006). The court noted, as have we, that
    the language of the APA “provides no support” for a cramped
    reading of the waiver incorporating § 704’s final agency
    action requirement, and that the legislative history likewise
    offers no basis for that position. Id. at 187. Rather, both the
    statutory language and its history counsel a broad waiver of
    “any” and “all” immunity for non-monetary claims. Id.
    
    
    
        35
           We draw confidence from this court’s varying characterizations of
    the issue in Gallo Cattle: whether the APA “vested [the court] with
    jurisdiction,” 159 F.3d at 1196; the court “had jurisdiction to review” the
    denial of relief “pursuant to the judicial review provisions of the [APA],”
    id. at 1198; the order was “reviewable,” id.; or the APA “vest[ed] the
    district court with jurisdiction to review the order,” id. at 1199. Only once
    does Gallo Cattle characterize the issue as one of sovereign immunity. Id.
    at 1198.
    50           NAVAJO NATION V. DEP’T OF INTERIOR
    
    (internal citations omitted).           Other circuits are in near-
    unanimity.36
    
        In sum, pigeonholing Presbyterian Church as a case
    about constitutional claims alone, as the district court did, is
    not supported by the statute, the language of the case, or any
    of our case law interpreting the statute, before or after
    Presbyterian Church. Instead, we read Gallo Cattle in light
    of its facts to be a case primarily about the justiciability of
    APA claims challenging non-final action. This reading does
    not trench at all upon Presbyterian Church or our other cases
    recognizing that § 702 enacted a broad, unqualified waiver
    for all non-monetary claims for relief against federal
    
    
         36
            See Red Lake Band of Chippewa Indians v. Barlow, 
    846 F.2d 474
    ,
    475–76 (8th Cir. 1988) (rejecting the argument that § 702’s waiver “exists
    only to allow review of a final agency decision” in Indian trust claims and
    holding that it depends only “on the suit against the government being one
    for non-monetary relief”); Treasurer of N.J. v. U.S. Dep’t of Treasury,
    
    684 F.3d 382
    , 400 (3d Cir. 2012) (“Section 704 concerns whether a
    plaintiff has a cause of action under the APA that can survive a motion to
    dismiss under Rule 12(b)(6) but does not provide a basis for dismissal on
    grounds of sovereign immunity”); Michigan v. U.S. Army Corps of
    Eng’rs, 
    667 F.3d 765
    , 775 (7th Cir. 2011) (“[T]he conditions of § 704
    affect the right of action contained in the first sentence of § 702, but they
    do not limit the waiver of immunity in § 702’s second sentence.”) (citing
    VCS I, 644 F.3d at 866–68); Muniz-Muniz v. U.S. Border Patrol, 
    741 F.3d 668
    , 672 (6th Cir. 2013) (same); Delano Farms Co. v. Cal. Table Grape
    Comm’n, 
    655 F.3d 1337
    , 1344 (Fed. Cir. 2011) (same); see also United
    States v. Mitchell, 
    463 U.S. 206
    , 227 & n.32 (1983) (noting that Congress
    “enacted a general consent” in § 702 to claims for declaratory and
    injunctive relief in a case alleging breach of fiduciary duty regarding tribal
    timber resources). The Fifth Circuit appears to be alone in holding to the
    contrary. See Alabama-Coushatta Tribe of Texas v. United States,
    
    757 F.3d 484
    , 489 (5th Cir. 2014) (“the plaintiff must identify some
    ‘agency action’ affecting” it as defined under 5 U.S.C. § 551(13) to avail
    itself of § 702’s waiver).
              NAVAJO NATION V. DEP’T OF INTERIOR                51
    
    agencies. And, our reading best squares the holdings of
    Presbyterian Church and Gallo Cattle in light of the text of
    § 702, the legislative history of the provision, and the strong
    weight of authority in the federal courts.
    
       C. The Nation’s Breach of Trust Claims
    
        Here, the Nation in its breach of trust claim against
    Interior seeks “relief other than money damages” for claims
    “that an agency or an officer or employee thereof acted or
    failed to act in an official capacity.” 5 U.S.C. § 702. The
    waiver of sovereign immunity in § 702 applies squarely to the
    Nation’s breach of trust claim.
    
        The district court expressed some tentative views on the
    merits of this claim but ultimately rested its dismissal
    squarely on the bar of sovereign immunity. We therefore
    remand to the district court to consider fully the Nation’s
    breach of trust claim in the first instance, after entertaining
    any request to amend the claim more fully to flesh it out.
    
         V. RULE 60(B) RELIEF FROM JUDGMENT
    
        After the district court entered judgment against the
    Nation, the Nation moved for relief under Federal Rule of
    Civil Procedure 60(b)(6), seeking to re-open the proceedings
    so that it could amend its pleadings. Where none of Rule
    60(b)’s five enumerated circumstances applies, its catch-all
    provision permits a court to grant relief for “any other reason
    that justifies relief.” Fed. R. Civ. P. 60(b)(6). The district
    court denied the motion because the Nation had failed to cure
    its pleading deficiencies in previous amendments, did not
    explain why its claims would be time-barred after dismissal
    without prejudice, and did not spell out with sufficient
    52        NAVAJO NATION V. DEP’T OF INTERIOR
    
    specificity how it intended to amend its complaint. “We
    review the district court’s denial of a Rule 60(b) motion for
    an abuse of discretion.” Delay v. Gordon, 
    475 F.3d 1039
    ,
    1043 (9th Cir. 2007).
    
        Because we reverse the district court’s dismissal of the
    Nation’s breach of trust claim, its appeal from the district
    court’s denial of its 60(b) motion is moot to the extent the
    Nation sought to amend its complaint to plead additional or
    alternative waivers of sovereign immunity. See Thompson v.
    Calderon, 
    151 F.3d 918
    , 920 (9th Cir. 1998) (en banc). Our
    affirmance of the district court’s dismissal of the Nation’s
    NEPA claims, however, requires us to address this appeal
    insofar as the Nation sought to replead those claims.
    
        A court should “freely give leave [to amend] when justice
    so requires,” Fed. R. Civ. P. 15(a)(2), a policy “to be applied
    with extreme liberality.” Morongo Band of Mission Indians
    v. Rose, 
    893 F.2d 1074
    , 1079 (9th Cir. 1990). But “after final
    judgment has been entered, a Rule 15(a) motion may be
    considered only if the judgment is first reopened under Rule
    59 or 60.” Lindauer v. Rogers, 
    91 F.3d 1355
    , 1356 (9th Cir.
    1996).
    
        In contrast to the “freely give[n]” dispensation to amend
    in Rule 15, Rule 60(b) relief should be granted “sparingly” to
    avoid “manifest injustice” and “only where extraordinary
    circumstances prevented a party from taking timely action to
    prevent or correct an erroneous judgment.” United States v.
    Alpine Land & Reservoir Co., 
    984 F.2d 1047
    , 1049 (9th Cir.
    1993) (emphasis added). “Rule 60(b)(6) relief normally will
    not be granted unless the moving party is able to show both
    injury and that circumstances beyond its control prevented
    timely action to protect its interests.” Id. After judgment,
                NAVAJO NATION V. DEP’T OF INTERIOR                        53
    
    then, “our policy of promoting the finality of judgments”
    somewhat displaces Rule 15’s openhandedness. Lindauer, 91
    F.3d at 1357.
    
        Contrary to the district court, we do think the Nation
    sufficiently explained why the district court’s dismissal of
    claims was effectively with prejudice—because the relevant
    statutes of limitations had run on those claims. See 28 U.S.C.
    § 2401(a) (six-year statute of limitations against the United
    States). Nonetheless, the district court did not abuse its
    discretion in denying the Nation relief from final judgment to
    allow leave to amend.
    
        The Nation amended its complaint twice before the court
    dismissed its claims. Although the Nation argues that it
    amended its complaint each time for other reasons,37 it had
    ample opportunity at those junctures to address the
    deficiencies in its pleading—deficiencies which, at least at
    the time the Second Amended Complaint was filed, the
    defendants had identified in their motions to dismiss. See
    Premo v. Martin, 
    119 F.3d 764
    , 772 (9th Cir. 1997); Weeks
    v. Bayer, 
    246 F.3d 1231
    , 1236 (9th Cir. 2001). The Nation
    also had time after filing its Second Amended Complaint, but
    before the court dismissed its claims, to seek further leave to
    amend. See Premo, 119 F.3d at 772 (noting the plaintiff’s
    “ample opportunity to file an amended complaint with new
    allegations before the court issued its final judgment”).
    Based on the Nation’s past failures to amend its complaints
    and its present failure specifically to identify how it would
    amend its pleading to overcome its standing problems, the
    
    
        37
           The Nation first amended its complaint to bring it up to date after
    a nearly decade-long stay pending unsuccessful settlement talks. It later
    amended the complaint to voluntarily strike one of its claims.
    54         NAVAJO NATION V. DEP’T OF INTERIOR
    
    district court reasonably concluded that the Nation had not
    negated futility.
    
        Given the Nation’s opportunities (and failures) to amend,
    the district court acted within its discretion in refusing post-
    judgment leave to amend.
    
                        VI. CONCLUSION
    
        The Nation lacks Article III standing for its NEPA claims
    and is not entitled to relief from judgment under Rule 60(b)
    to amend its pleadings as to those allegations. The Nation’s
    breach of trust claim, however, is not barred by sovereign
    immunity. As the dismissal of that claim on sovereign
    immunity grounds was unwarranted, we remand to the district
    court to consider the claim on its merits, after entertaining
    any request to amend it.
    
      AFFIRMED IN PART, REVERSED IN PART, AND
    REMANDED.